93 Decision Citation: BVA 93-01934
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-56 513 ) DATE
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THE ISSUES
1. Whether new and material evidence has been presented
sufficient to reopen a claim for service connection for a
seizure disorder.
2. Service connection for a back injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
William L. Pine, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 9 to
December 19, 1975, when he was issued an honorable discharge
on the basis of Medical Board findings that he had not been
physically qualified for enlistment or induction because of
a pre-existing back condition which was determined not to
have been aggravated by service.
In May 1986 the Louisville, Kentucky, Regional Office (VARO)
denied a claim for service connection for a seizure
disorder. The appellant was notified of the decision and of
his appellate rights by a letter dated May 21, 1986. In May
1987 the appellant submitted another claim for service
connection for a seizure disorder, along with additional
evidence. VARO issued a rating decision in May 1987
confirming the May 1986 denial. The appellant was notified
of the decision and of his appellate rights by a letter
dated May 28, 1987. He did not file a timely notice of
disagreement in response to either notice of decision.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of February 1991.
The notice of disagreement was received on April 18, 1991,
apparently in response to unofficial notice of the
decision. VARO officially notified the appellant of the
decision and of his appellate rights by a letter dated April
20, 1991. The statement of the case was issued on June 4,
1991. The substantive appeal was received on June 25, 1991.
A hearing initially scheduled for October 30, 1991 was
rescheduled at the request of the veteran, and he failed to
report on January 8, 1992, for the rescheduled hearing. The
appeal was received at the Board on February 14, 1992. The
appellant's representative in this matter, Disabled American
Veterans, provided a brief on appeal on March 26, 1992.
REMAND
The appellant contends that he incurred a seizure disorder
in service, caused by back and head injuries sustained
during basic training. He filed a VA Form 21-526
(Application for Compensation) dated in December 1990,
wherein he requested that VARO obtain all available records
from VA Medical Center (VAMC) Lexington, Kentucky, from 1975
to the present.
The claims folder contains some records from VAMC Lexington,
but none from 1975 and not those of an admission in October
1991, reported by the appellant. There is no record of VARO
having requested records from VAMC. Any available inpatient
and outpatient records should be obtained.
The appellant has never had a VA examination for
compensation purposes in connection with his claim for
service connection for a back injury. He should be afforded
such an examination.
Accordingly, the case is REMANDED to the originating agency
for the following:
1. Obtain VA outpatient and hospital records from
VAMC Lexington, Kentucky, for the period from 1975
to the present, and add them to the claims folder.
2. Schedule the appellant for a VA orthopedic
examination, with any indicated tests or procedures,
to diagnose any pathology of the lumbosacral region
and to render an opinion whether there are objective
indications of previous low back trauma. Provide
the examiner with the appellant's claims folder or a
copy of the complete medical record. Department of
Veterans Affairs, Physician's Guide for Disability
Evaluation Examinations 1.12 (1985).
Thereafter, personnel of the originating agency shall
readjudicate the claim and determine whether the appellant's
claim may now be allowed. If not, provide the appellant
with an appropriate supplemental statement of the case,
indicating that he has a reasonable time to respond, and
return the case to the Board for further appellate
consideration, if appropriate.
This REMAND is to develop evidence. Appellate review of
both issues on appeal is deferred pending completion of the
dictates of this order. The Board intimates no opinion as
to the final outcome warranted in this case.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
MATTHEW L. GORMLEY, III
KENNETH R. ANDREWS, JR.
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.